Applying International Law To the Israel-Hamas War; An Interview with Professor Alan Dershowitz

Professor Alan Dershowitz is the Felix Frankfurter Professor of Law at Harvard Law School. He has been called “America’s most public Jewish defender” and “Israel’s single most visible defender – the Jewish state’s lead attorney in the court of public opinion.” Professor Dershowitz taught at Harvard Law School for almost 50 years and is well-known for his work in constitutional and criminal law. He has written several books on the topics of Israel and Zionism including The New York Times #1 bestseller Chutzpah and The Case for Israel. In the wake of the October 7 terrorist attack, Professor Dershowitz has been outspoken in his support for and defense of Israel and their right to respond. In this conversation, I ask Professor Dershowitz about the international and humanitarian laws that govern the Israel-Hamas war.

This article, conducted by Sydney Bloch in the fall of 2023, was edited for clarity and length.

Sydney: My first question for you is that since Israel is fighting an opponent, Hamas, that's clearly not concerned with following any of the rules of international law with respect to warfare, do you think Israel still has a responsibility to follow those laws, or has the very nature of the conflict rendered the application of international law moot?

Dershowitz: No, it's a matter of degree, Israel has an obligation to follow the laws of distinction, distinguishing between civilians and military, and also the laws of proportionality. But they're (the laws) not absolutely clear in the context of a war against terrorists who hide among civilians. So if Israel has legitimate military targets, a man or a leader of Hamas, and that Hamas person is hiding amongst civilians, Israel has the right to go after him. They should try to minimize civilian casualties, but they have the right to capture or kill a major target or combatant even if they know that it might involve collateral damage. You can't prevent Israel from achieving its military goals by deliberately putting combatants amidst civilians. Otherwise, it would mean that no democracy could ever fight effectively against terrorism. So it's always going to be a matter of degree, and Israel has had fewer civilian casualties than the United States did in either Afghanistan or Iraq. And probably, I think one can say, Israel's had fewer civilian casualties than any country in history, faced with comparable threats. So the attacks on Israel for committing, “genocide,” are clearly themselves, violations of any sense of decency would prove.

Sydney: As you mentioned, the rule of proportionality protects civilians. And obviously, that is complicated by the fact that Hamas is using their citizens as human shields, purposefully embedding themselves and their bases in civilian areas. Despite that, there's been a lot in the press claiming that Israel is recklessly killing civilians. Do you think that up to this point, everything Israel has done has followed the rules of law?

Dershowitz: Absolutely. I think they've come well within the law. They have, in fact, escorted civilians out of harm's way, given them access roads to the South, they have refused to go after certain combatants because of the danger to civilians, they have done more to protect civilians, I think, than any country that faced comparable threats from terrorism. So Israel has nothing to be ashamed of. All it has to do is fear the double standard, and that's what we're seeing apply - a double standard - not only by European countries and human rights groups, but even by some in the United States. Just compare Israel's actions to America's actions, the United States in going after Al Qaeda and other groups that were not on its borders, committed far more civilian deaths, and Israel is facing a threat much closer to its border. So the United States cannot morally lecture on this. Obviously, the United States has the power so it can enforce its own rules on Israel, but in terms of morality and legality, Israel has done better than the United States generally.

Sydney: I think an added layer of this is the fact that for Israel, this war began in self defense in response to the October 7 terrorist attack. International humanitarian law regulates the use of force and prohibits most uses of force, except in the case of self defense.

Dershowitz: Well, this is more than self defense, because not only was there the attack on October 7, there was the threat by Hamas that they will do it over and over again. And they will do it over again, because they're winning the war of public relations. They're using what they call the CNN strategy, which in my new book, War against the Jews, I call the “dead baby strategy” that deliberately puts children in harm's way, knowing that Israel is going to have to defend itself against rocket attacks, knowing that there will be some children killed. All those killings are the responsibility - legally, morally, politically, internationally - all the responsibility of Hamas. The media doesn't see it that way. It sees a dead child, and it blames it on Israel. So it's going to happen again and again and again, because Hamas wins this [media] war. [Hamas is] already proclaiming victory, even though it has lost obviously, a lot of its own soldiers.

Sydney: Along with that, as you said, Hamas’s stated mission is the eradication of the Jewish state and the Jewish people. Leaving even one Hamas officer means that they want Jewish people dead. So can Israel claim self defense all the way up into the last Hamas fighter is gone? To the point of command and control? To what limit are they bound?

Dershowitz: It's a matter of degree. They can't bomb a hospital in order to get one terrorist, obviously, but if the entire command center is buried under a hospital, then they should take whatever precautions they take — or in the case of the hospital, give it an opportunity to move, but it has to go after the command and control center. So it's always going to be a matter of degree. It's not until the last Hamas soldier or fighter, it's until perhaps the last Hamas commander.

Sydney: Another thing I wanted to touch on, and part of the public relations issue is that many people have been critical of Israel because of the imbalance of power. Obviously, Israel is stronger in the conscripted army and their technology like the Iron Dome. Does the power imbalance at all affect the extent to which Israel can respond?

Dershowitz: Of course not. The balance of power was very much in favor of the United States against Al Qaeda and against the Taliban — the balance of power is a good thing. Israel will only survive if it has a disproportionate ability to destroy its enemies before its enemies destroy them. As the Bible says, if somebody comes to kill you, rise up and kill them first. That's as old as the Bible, and as modern as criminal codes. So thankfully, Israel does have more power. But when you compare Israel to their real enemy, which is Iran, then we're talking about a balance of power, particularly if Iran is on the road to getting nuclear weapons, which Israel has the right to prevent, if it can.

Sydney: If Israel does eradicate Hamas, what legal obligations does Israel have? Who can take over the Gaza Strip? What would that mean?

Dershowitz: It has none. No legal obligations whatsoever. They have the need to create security efforts to make sure that what happened doesn't happen again, but it has no legal obligation. Just as they had no legal obligation, after it left Gaza in 2005. But (Israel) made a mistake by withdrawing all of its troops in 2005, it should have ended the military settlements and the civilian settlements, but it should not have ended the presence of the military there that cost a lot of lives. Israel has the right to continue military occupation until all hostilities are ended. And that’s obviously going to take some time.

Sydney: I'm wondering if you think that these international bodies, these international laws, have any effect on the actions of Israel? As we talked about, when Israel is facing the threat of the existence of their state, of their people, do these international bodies actually have an effect on Israel’s actions?

Dershowitz: I hope not. International bodies have no moral suasion. The Secretary General of the United Nations blamed it essentially — the October 7 massacres — on Israel. Nobody should listen to him, nobody should listen to the Human Rights Council, nobody should listen to the United Nations. Israel has to listen to the United States, but that's all it has to listen to. And hopefully it will make its own decisions because it has a higher sense of morality than any of the international bodies.

Sydney My last question, along the lines of that, is do you see value in worrying about compliance with this international law, aside from for public relations purposes, which we talked about is important?

Dershowitz: Yes, I do. I think that the compliance with the rule of law, broadly defined, is important, and Israel has led the world in complying with the rule of law. What happened is that it was complying way beyond what the law requires up until October 7. And now after October 7, it is still complying with the rule of law, but it's not doing it as generously as it did before, because it now realizes what Hamas would do if they ever managed to capture a part of Israel - there would be slaughter and genocide. And Israel, quite the opposite, engages in efforts to try to prevent any kind of killing of civilians. So Israel should continue to comply with the rule of law, but it should define it to make sure that it always prefers the life of its civilians over the life of Hamas murderers and killers.